FILED

United States Court of Appeals

Tenth Circuit

February 20, 2009

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 07-2263

v.

(D. N.M.)

RICKY LEE SULLIVAN,

(D.C. No. 1:06-CR-00402-JEC)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY, Chief Judge, TYMKOVICH, Circuit Judge, and LEONARD, **

District Judge.

Defendant-Appellant Ricky Lee Sullivan received a one-hundred month

sentence for his conviction for felony possession of firearms and ammunition, in
violation of 18 U.S.C. 922(g)(1) and 924(a)(2). On appeal, he challenges his
sentence on reasonableness grounds, contending that the district court erred in
calculating his criminal history by including his conviction for attempted perjury

This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**

The Honorable Timothy D. Leonard, United States District Judge for the
Western District of Oklahoma, sitting by designation.

and his conviction for use/possession of drugs. Mr. Sullivan further argues that
the district court unreasonably refused to grant him a downward departure or
variance and failed to provide a sufficiently reasoned basis for his sentence.
We are not convinced by these arguments. The district court properly
applied the Guidelines in calculating Mr. Sullivans criminal history, reasonably
imposed a within-Guidelines sentence, and provided a sufficient explanation of
the sentence imposed. Exercising jurisdiction under 18 U.S.C. 3742(a), we
therefore affirm Mr. Sullivans sentence.

I. BACKGROUND
In October 2005, Mr. Sullivan brandished a firearm during an altercation
with a neighbor in Bloomfield, New Mexico. Mr. Sullivan was arrested for
aggravated assault with a deadly weapon.
Later, police obtained a search warrant for Mr. Sullivans home and pickup
truck to locate the firearm. During the search of Mr. Sullivans truck, police
discovered a box of ammunition, a zippered bag containing methamphetamine, a 9
mm pistol, three glass pipes, a digital scale, a police scanner, and a backpack with
surveillance equipment.
Police executed a second search warrant at Mr. Sullivans house, camper
trailer, and shed. During that search, police discovered three .22 caliber rifles,
two shotguns, marijuana, a police scanner, drug paraphernalia, cocaine, and

methamphetamine. Later, police determined that two of the seized firearms were
stolen.
On February 22, 2006, Mr. Sullivan was indicted for being a felon in
possession of firearms and ammunition in violation of 18 U.S.C. 922(g)(1) and
924(a)(2) (Count I); possession of an unregistered firearm, in violation of 26
U.S.C. 5861(d) and 5871 (Count II); and possession of less than 50 grams of
methamphetamine with intent to distribute, in violation of 21 U.S.C. 841(a)(1)
and 841(b)(1)(C) (Count III).
At his detention hearing on March 15, 2006, Mr. Sullivan informed the
court of a preexisting leg injury, stemming from a 2004 ATV accident. Absent
prior treatment, the leg injury carried a risk of amputation.
Pursuant to a plea agreement, Mr. Sullivan pleaded guilty to Count I (being
a felon in possession of firearms and ammunition). The Presentence Report
(PSR) calculated Mr. Sullivans criminal offense level as follows: a base level
of twenty-two, pursuant to U.S.S.G. 2K2.1(a)(3)(A)(ii); an additional two points
for possession of a stolen firearm, pursuant to U.S.S.G. 2K2.1(b)(4); an
additional four points for possession of a firearm in connection with a felony
offense, pursuant to U.S.S.G. 2K2.1(b)(6); and a three-point reduction for
acceptance of responsibility pursuant to U.S.S.G. 3E1.1, for a total offense level
of twenty-seven. The PSR calculated Mr. Sullivans criminal history score at
seven, for a criminal history category of IV.
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In making its calculations, the PSR took into account Mr. Sullivans 1996
conviction for larceny (one point); 1997 conviction for attempted perjury (one
point); 1998 conviction for use/possession of drug paraphernalia and driving with
a suspended or revoked license (one point); 1998 conviction for aggravated
battery (three points); and 2003 convictions for accessory to larceny and attempt
to commit a felony (one point).
Thereafter, Mr. Sullivan filed a sentencing memorandum contending that
his leg injury required a below-Guidelines sentence. He also filed a motion for
downward departure and objections to presentence report, requesting a downward
departure for his medical condition, physical condition, and the overrepresentation of his criminal history.
The district court denied Mr. Sullivans motions. Adopting the PSRs
calculated offense level and criminal history (resulting in an advisory guidelines
range of 100-120 months), the district court sentenced Mr. Sullivan to onehundred months imprisonment. This appeal followed.
II. DISCUSSION
We review Mr. Sullivans sentence for reasonableness, which has both
procedural and substantive dimensions. A procedurally reasonable sentence
reflects the sentencing courts [correct] calculation of the applicable advisory
Guidelines range and its application of the 3553(a) factors. United States v.
Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). A sentence is substantively
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reasonable when it reflects the gravity of the crime and the 3553(a) factors as
applied to the case. Id. (internal quotation marks omitted).
A.

The district court did not err by including Mr. Sullivans

conviction for attempted perjury in its criminal history category
calculus.

Under the Sentencing Guidelines, all prior sentences for felony offenses
within the applicable time period are included in calculating a defendants
criminal history. U.S.S.G. 4A1.2(c). Sentences for misdemeanors are also
included, unless the misdemeanor falls within the exceptions listed in U.S.S.G.
4A1.2(c). As relevant here, 4A1.2(c)(1) excludes from calculation sentences
received for fifteen enumerated offenses and offenses similar to them, by
whatever name they are known, subject to some exceptions. One of the
enumerated offenses is contempt of court.
Invoking 4A1.2(c)(1), Mr. Sullivan contends that the district court erred
in calculating his criminal history category by including his conviction for
attempted perjury. He argues that attempted perjury is sufficiently similar to one
of the named exclusions (contempt of court) so that 18 U.S.C. 4A1.2(c)(1) bars
its use in the instant sentencing calculus.
In response, the government submits that Mr. Sullivans failure to raise his
objection to this issue at the sentencing hearing limits our review to plain error.
Mr. Sullivan, of course, disagrees, citing his objections to the PSR. We need not
resolve this dispute, however, as even under the less onerous reasonableness
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review, Mr. Sullivans claim fails.

Both parties engage in extended discussions of the similarities and
differences between the crimes of perjury and contempt. These comparisons,
however, obscure the issue before us: whether attempted perjury is similar to
contempt of court for 4A1.2(c)(1) purposes. It plainly is not.
As we stated in United States v. Perez de Dios, to be similar is to be
nearly corresponding; resembling in many respects; somewhat alike; having a
general likeness. 237 F.3d 1192, 1198-1199 (10th Cir. 2001) (applying the
similar criterion in 4A1.2(c) by comparing the general or essential
characteristics of the two offenses at issue) (internal quotation marks omitted).
Invoking Perez de Dios essential characteristics test here, we easily conclude
that the district court properly included Mr. Sullivans conviction for attempted
perjury in its criminal history calculus.
In New Mexico, conduct violating a court order in the courts presence
constitutes direct criminal contempt. Byrnes v. Baca, 54 P.3d 996, 1003 (N.M.
Ct. App. 2002). Perjury, on the other hand, consists of making a false statement
under oath or affirmation, material to the issue or matter involved in the course of
any judicial, administrative, legislative or other official proceeding, knowing such
statement to be untrue. State v. Naranjo, 94 N.M. 407, 411 (N.M. 1980)
(emphasis in original). Those guilty of both perjury and contempt are subject to
criminal consequences.
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Attempted perjury, on the other hand, is an attempt to tell an untruth under

oath. A comparison of the elements of contempt of court and attempted perjury
reveals no commonality or general likeness. Indeed, the law recognizes that
offenses based on falsity are of particular concern in a system of justice utilizing
testimony. Cf. Fed. R. Evid. 609(a) (permitting the admission of a witnesss prior
act of dishonesty or false statement by for purposes of impeachment).
Because Mr. Sullivan has failed to demonstrate that his attempted perjury
conviction shares the essential characteristics of contempt of court, we affirm
the district courts inclusion of attempted perjury in Mr. Sullivans criminal
history calculus.

B.

The district court did not err by including Mr. Sullivans

conviction for use/possession of drugs in its criminal history
category calculus.

Mr. Sullivan contends that the district courts addition of one criminal
history point for his use/possession of drug paraphernalia conviction in state court
was improper because the PSR states that attorney representation is unknown.
Aplts App. vol. II, at 140. Reviewing under the less-onerous reasonableness
standard, Mr. Sullivans claim fails.
Once the United States establishes the existence of a prior conviction, the
defendant must prove by a preponderance of the evidence that the conviction was
constitutionally infirm. United States v. Cruz-Alcala, 338 F.3d 1194, 1197 (10th

Cir. 2003) (internal citations omitted). A presumption of regularity attaches to

final judgment. Id. (internal quotation marks omitted).
Mr. Sullivan does not contest the fact of the prior conviction, nor does he
state that the conviction was imposed in the absence of counsel. Indeed, Mr.
Sullivan fails to submit a single affirmative statement asserting a deprivation of
counsel. Rather, Mr. Sullivan bases his claim on the PSRs failure to explicitly
state that he had representation. In other words, Mr. Sullivan requests this court
to reverse the decision of the district court on the basis that he may have been
uncounseled.
As the United States Supreme Court observed in Burgett v. Texas,
convictions obtained without the benefit of counsel cannot be used against a
defendant to enhance punishment for another offense. 389 U.S. 109, 114 (1967).
Here, however, Mr. Sullivan has failed to demonstrate, by a preponderance of the
evidence, that he did not receive the benefit of counsel during the drug
use/possession proceedings against him. Indeed, beyond the equivocal PSR
provision, Mr. Sullivan has failed to submit any evidence at all. Thus, we find
that the district courts inclusion of Mr. Sullivans conviction for use/possession
of drug paraphernalia was proper.
C.

The district court did not err when it denied Mr. Sullivans
motion for downward departure.

As we stated in United States v. Chavez-Diaz, we lack jurisdiction to

review a district courts discretionary decision to deny a motion for downward

departure on the ground that a defendants circumstances do not warrant a
departure. 444 F.3d 1223, 1228 (10th Cir. 2006) (internal quotations marks
omitted). Pursuant to 18 U.S.C. 3742(a), however, we may review an appeal of
a sentence that:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing
guidelines; or
(3) is greater than the sentence specified in the applicable guidelines
range to the extent that the sentence includes a greater fine or term of
imprisonment, probation, or supervised release than the maximum
established in the guideline range. . . ;
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.
Review under 3742(a) includes arguments that were previously barred as an
attempt to appeal a denial of a downward departure. Chavez-Diaz, 444 F.3d at
1228-29 (citing United States v. Cooper, 437 F.3d 324, 328 (3d Cir. 2006);
United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2005)).
In imposing a sentence, a district court must:
consider the nature and circumstances of the offense and the history and
characteristics of the defendant[;] . . . [consider] the general purposes
of sentencing, including: the need for the sentence imposed . . . to
reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; . . . to afford adequate
deterrence to criminal conduct; to protect the public from further crimes
of the defendant; and to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in
the most effective manner. . . ; avoid unwarranted sentence disparities
. . . . [and] provide restitution to any victim.

Gall v. United States, 128 S. Ct. 586, 597 n.6 (2007) (internal citations and
quotation marks omitted). Here, the district court reviewed the PSRs factual
findings and considered the sentencing guidelines, as well as the 3553(a)
factors. Mr. Sullivan has a lengthy criminal history including felony theft,
aggravated battery with a deadly weapon, misdemeanor perjury, use/possession of
drug paraphernalia, and larceny. The instant offense involved six weapons, one
of which was stolen, and all of which were involved in the initial charges of
aggravated assault, receipt of stolen property, possession of a firearm, and
resisting arrest. The district courts imposition of a sentence at the low end of the
Guidelines range is entitled to a rebuttable presumption of reasonableness, which
Mr. Sullivan has failed to overcome. See United States v. Sanchez-Juarez, 446
F.3d 1109, 1114 (10th Cir. 2006); United States v. Rojas, 531 F.3d 1203, 1209
(10th Cir. 2008) (A sentence which falls within a properly calculated Guideline
range is entitled to a rebuttable presumption of reasonableness.) (citation
omitted)).

D.

The district court gave due consideration to Mr. Sullivans legal

arguments, and provided a sufficiently reasoned basis for his
sentence.

Mr. Sullivan contends that the district court failed to provide a sufficient
explanation for the sentence it imposed. Aplts Br. at 28-29. In addition, Mr.
Sullivan claims that the district court failed to address his non-frivolous issues at

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the sentencing hearing itself or in any subsequent written findings. Id. at 31.
In general, the district court has significant discretion in sentencing.
United States v. Tindall, 519 F.3d 1057, 1065 (10th Cir. 2008). We review a
sentence for reasonableness, applying an abuse of discretion standard. Id.
Pursuant to the Supreme Courts decision in United States v. Booker, 543
U.S. 220 (2005), every sentence that a district court ultimately imposes must
reflect its determination of what is reasonable in light of the . . . 3553(a)
factors. Sanchez-Juarez, 446 F.3d at 1114 (emphasis added).
Under 3533(c):
The court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence, and, if the
sentence-(1) is of the kind, and within the range, described in subsection (a)(4),
and that range exceeds 24 months, the reason for imposing a sentence
at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection
(a)(4), the specific reason for the imposition of a sentence different
from that described . . . .
As the Supreme Court clarified in Rita v. United States, the sentencing judge
should set forth enough to satisfy the appellate court that he has considered the
parties arguments and has a reasoned basis for exercising his own legal
decisionmaking authority. 127 S. Ct. 2456, 2468 (2007). But the Court also
made clear that a district judge is not required to give an exhaustive list of
reasons. Indeed, the law leaves much, in this respect, to the judges own
professional judgment. Id. More specifically, the district court must calculate
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and consider the sentencing range indicated by the Guidelines, consider that range
as advisory, and then consider the range in light of 3553(a). United States v.
Hamilton, 510 F.3d 1209, 1218 (10th Cir. 2007).
The district court need not consider each factor listed in 18 U.S.C.
3553(a) prior to imposing a sentence, nor must the district court recite magic
words to demonstrate that it has fulfilled its responsibility to be mindful of the
factors Congress instructed it to consider. United States v. Rines, 419 F.3d 1104,
1107 (10th Cir. 2005). As we observed in Tindall, a one-sentence explanation
accompanying a within-guidelines sentence may be sufficient. 519 F.3d at 1065
(stating that the district courts explanation that the sentence I am about to
impose is the most reasonable sentence upon consideration of all factors
enumerated in 18 United States Code 3553 was proper, and [t]hus, the district
court committed no procedural error in explaining [the defendants] sentence).
Although Tindall suggests that district courts may be required to provide a more
detailed explanation where the defendant raises specific 3553(a) arguments, id.,
for sentences that are within-Guidelines, a court need state only the appropriate
guideline range, and how it was calculated. United States v. Ruiz-Terrazas, 477
F.3d 1196, 1202 (10th Cir. 2007)
In this case, the district court imposed a within-Guidelines sentence and, in
so doing, noted the range of Mr. Sullivans sentence and how it was calculated.
Although the district courts explanation could have been more detailed, it was
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procedurally reasonable.

III. Conclusion
We therefore AFFIRM the conclusions of the district court.

Entered for the Court,

Robert H. Henry
Circuit Judge
.

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